United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 4, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10884
United States of America
Plaintiff-Appellee,
versus
Alfredo Porter
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(U.S.D.C. No. 3:03-cr-00327-1)
Before REAVLEY, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
This appeal arises from defendant-appellant Alfredo Porter’s
conviction of (1) conspiracy to distribute and possess with intent
to distribute PCP and marijuana; (2) possession of PCP and
marijuana with intent to distribute; (3) using, carrying, and
possessing a firearm in furtherance of drug trafficking; and (4)
possession of a firearm by a convicted felon. Porter argues that
the district court abused its discretion by admitting evidence of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
a prior drug arrest under Federal Rule of Evidence 404(b). We
affirm.
I
On March 24, 2003, Dallas police officer Michael Mata, using
binoculars, observed several individuals selling drugs out of a
house located at 2625 Jennings Avenue, Dallas, Texas. After
approximately twenty-five minutes of observation, Mata approached
the house and, through the screen door, observed Porter at a table
counting stacks of money, with distributable quantities of
marijuana, PCP, other drugs, a handgun, and a scale nearby. After
Mata identified himself as a member of the Dallas police
department, Porter flipped the table over and fled out the backdoor
of the residence. As Mata gathered evidence at the house, other
officers pursued Porter and, shortly thereafter, Officer Steven
Moore apprehended him.
Prior to trial, the government notified Porter that it
intended to introduce evidence, pursuant to Federal Rule of
Evidence 404(b), that Porter had been arrested for a similar
offense on March 3, 2003, in Duncanville, Texas. Porter filed a
motion in limine seeking to exclude evidence of the Duncanville
arrest. After a hearing, the district court overruled Porter’s
motion and allowed the government to introduce the evidence.
The Duncanville arrest occurred on March 3, 2003, three weeks
before the charged incident. There, Porter was riding in the
2
backseat of a car pulled over for a traffic violation by Ralph
Woods, an officer with the Duncanville police department. The
driver of the car had several outstanding warrants and was placed
under arrest. After Porter was asked to exit the vehicle, he took
a cooler in his possession and stashed it on the back dash of the
car. Subsequently, Officer Woods searched the cooler and found
distributable amounts of marijuana, methamphetamine, and ecstasy.
When Woods attempted to place Porter under arrest, Porter fled on
foot.
Porter pled not guilty to all four counts. After the
government put on evidence establishing the above facts, Porter
presented three witnesses that testified that Porter was not a drug
dealer operating out of the Jennings Avenue residence. Rather,
each witness testified that Porter had arrived at the house shortly
before the police raid in order to purchase drugs. The jury found
Porter guilty on all four counts, and he was sentenced to a total
term of imprisonment of 117 months and to a five-year term of
supervised release. Porter filed a timely notice of appeal.
II
We review the district court’s decision to admit evidence
pursuant to Federal Rule of Evidence 404(b) for an abuse of
discretion.1 Rule 404(b) excludes evidence of a defendant’s prior
1
United States v. Jackson, 339 F.3d 349, 354 (5th Cir.
2003); United States v. Anderson, 933 F.2d 1261, 1267-68 (5th
Cir. 1991). In Anderson, this Court noted that although review
3
crimes, wrongs, or acts, when offered to prove that his conduct in
the charged offense was in conformity therewith.2 Rule 404(b)
allows evidence of prior bad acts, however, when offered for “other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .”3
Our review is governed by the two-part test established in
United States v. Beechum. First, the evidence must be relevant to
an issue other than the defendant’s character; second, the evidence
must possess probative value which is not outweighed by the risk of
unfair prejudice.4 Here, Porter concedes that, by pleading not
guilty to a charge of conspiracy, he placed his intent, knowledge,
and absence of mistake at issue.5 Thus, Porter’s argument focuses
on the second-part of the Beechum analysis: the prejudicial effect
of the Duncanville arrest.
was deferential, in criminal trials, it is “necessarily
heightened.” Anderson, 933 F.2d at 1267-68.
2
FED. R. EVID. 404(b).
3
Id.
4
United States v. Beechum, 582 F.2d 898, 911 (1978) (en
banc).
5
United States v. Booker, 334 F.3d 406, 411 (5th Cir. 2003);
see also United States v. Wilwright, 56 F.3d 586, 589 (5th Cir.
1995) (recognizing that intent is especially at issue when “the
defendant contends that he was merely present at the scene of the
crime”).
4
Porter argues that evidence of the Duncanville arrest is
unnecessary to establish (1) his presence at the Jennings Avenue
residence, (2) his guilt, since witnesses directly observed him
selling narcotics and possessing firearms, and (3) his involvement
in a conspiracy, since witnesses directly observed him acting with
another in the drug trafficking enterprise. In short, Porter
argues that extrinsic evidence of the Duncanville arrest is
unnecessary given the “strong” case against him and the
government’s “direct and persuasive evidence.”
Given these admissions, it is hard to see how the district
court’s decision to admit evidence of the Duncanville arrest, even
if incorrect, was not harmless error.6 Regardless, we reject each
of Porter’s arguments.
Porter’s first two arguments are similar. First, Porter
argues that admitting the Duncanville arrest was unnecessary to
establish Porter’s presence at the drug house because “witnesses”
testified that Porter was at the location. Second, Porter argues
that admitting the Duncanville arrest was unnecessary to establish
Porter’s guilt of the crimes charged since “witnesses” directly
observed him selling narcotics and possessing firearms. Both
arguments are lacking. Considering the need for the evidence,7 the
6
See United States v. Edwards, 303 F.3d 606, 623 (5th Cir.
2002) (recognizing that erroneous admission of evidence does not
warrant reversal when it amounts to harmless error).
7
See United States v. Jackson, 339 F.3d 349, 354-57 (5th
Cir. 2003).
5
government presented a single witness, Officer Mata, that could
place Porter at the heart of the criminal conduct. Moreover,
Porter placed his intent at issue, arguing that he was present at
the Jennings Avenue residence only as a drug buyer, not as a drug
seller.8 Second, the offenses are somewhat similar. Both involved
possession of distributable amounts of drugs, including marijuana.
Finally, the offenses occurred only three weeks apart.
Porter’s final argument is that since the government had the
eyewitness testimony of Officer Mata that identified Porter and his
co-conspirator, Randy Anthony, at the Jennings Avenue residence,
extraneous evidence was not necessary to establish a conspiracy to
sell drugs. Porter is perhaps correct in this contention, although
it does not affect our decision. The extrinsic evidence of the
Duncanville arrest did not implicate Porter in a conspiracy with
Randy Anthony. Porter was in a car with several individuals, none
of which was Anthony. None of the circumstances surrounding the
Duncanville arrest suggests that Porter had or was conspiring to
sell drugs with any other individual. However, for reasons already
discussed, evidence of the Duncanville arrest is relevant to
establish Porter’s intent and identity at the time of the events
occurring at the Jennings Avenue residence.
Finally, any prejudicial effect of the Duncanville arrest was
mitigated by the limiting instruction provided by the district
8
See Wilwright, 56 F.3d at 589.
6
court.9 Therefore, the district court did not abuse its discretion
in admitting the evidence.
III
We reject Porter’s challenge to his conviction. Accordingly,
the judgement of the district court is AFFIRMED.
9
See United States v. Taylor, 210 F.3d 311, 318 (5th Cir.
2000).
7